Thursday, July 23, 2015
As part of the 2015 White House Conference on Aging, HHS posted a blog entry announcing the launch of a new website, aging.gov. According to the blog post from Nora Super, executive director of the WHCOA, "[o]ne of the lessons we learned through this journey is that older Americans, their families and other caregivers sometimes need help navigating the array of federal, state and local supports that are available." The website includes information on healthy aging, retirement security, and elder justice as well as links to various resources. Check it out!
Wednesday, July 22, 2015
The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia. The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.
The guide warns that failure to "meet the needs of a vulnerable client" may trigger:
- A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
- A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
- A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
- Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.
The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:
The Associated Press and the NORC Center for Public Affairs Research are doing a series of polls on Americans' experiences and views of long-term care. As described on the website, the AP-NORC "is undertaking a series of major studies on the public’s experiences with, and opinions and attitudes about, long-term care in the United States."
Demographic projections show the population age 65 and over nearly doubling by the time the last baby boomers have reached 65. Specifically, while seniors made up only 12 percent of the U.S. population in 2000, they are expected to comprise about 22 percent by 2040, with roughly 82 million Americans over the age of 65. How to plan for and finance high quality long-term care will remain a key policy question for lawmakers in the years to come.
The AP-NORC Center, with funding from the SCAN Foundation, is conducting annual nationally representative surveys of Americans age 40 and older to monitor a series of long-term care issues. Future studies will continue to examine awareness of older Americans' understanding of the long-term care system, their perceptions and misperceptions regarding the likelihood of needing long-term care services and the cost of those services, and their attitudes and behaviors regarding planning for long-term care.
The results from 5 polls, ranging from 2013 to 2015 can be accessed here. The most recent poll, conducted in April-May, 2015, focuses on Long-Term Care in America: Americans’ Outlook and Planning for Future Care which "explores new issues, including person-centered care experiences, the role of private health insurance plans in financing long-term care, and the special challenges faced by those who provide ongoing living assistance to elderly loved ones while also providing financial support to children. At the same time, the survey continues to track long-term care attitudes and planning behaviors." A quick take away summary from this
Five Things You Should Know From The AP-NORC Center’s Long-Term Care Poll Among adults age 40 and older:
- Nearly 1 in 10 are both supporting a child and providing ongoing living assistance for a loved one.
- Only a third say they are very or extremely confident in their ability to pay for ongoing living assistance they may need in the future.
- 54 percent report doing little or no planning for these needs.
- 1 in 5 do not know if private health insurance plans cover ongoing care in a nursing home, and over a quarter do not know if Medicare does.
- Majorities support a variety of policy options that would help Americans finance long-term care.
Tuesday, July 21, 2015
A new book from the U.K. by June Andrews is titled Dementia: The One-Stop Guide, and it offers practical advice for families, professionals, and people living with dementia and Alzheimer's Disease. The Table of Contents suggests the scope:
- What is dementia?
- Getting a diagnosis
- Adjusting to the news: for carers
- Adjusting to the news: for people with dementia
- What are friends for?
- Managing care at home
- Disturbing Behaviours
- Your dementia-friendly home
- What you should expect from the social care system
- What you should expect from the NHS
- The dangers of a hospital admission and how to avoid them
- Some important legal issues
- What to look for in a care home
- Advice on complaints and sample letter
I wonder how Chapters 9 and 10 would be written from a U.S. perspective?
July 21, 2015 in Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)
Monday, July 20, 2015
The Administration for Community Living (ACL)/Administration on Aging (AoA) announced an upcoming webinar, People Who Live Alone with Dementia. The webinar is offered by the National Alzheimer’s and Dementia Resource Center (formerly the ADSSP National Resource Center). The website describes this July 30th webinar as follows:
The webinar will focus on the issue of Persons Living Alone with Dementia. Participants will learn about prevalence and characteristics of people with dementia who live alone, signs of self-neglect and intervention strategies, and the experiences of people with dementia who live alone. Dr. Penny Harris and Dr. Michael Lepore will present at this webinar.
The webinar starts at 3 p.m. edt and lasts for one hour. To register for this free webinar, click here.
A good piece from the New York Times' Paula Span (and her always relevant New Old Age Blog), HIPAA's Use as Code of Silence Often Misinterprets the Law:
How do people use, misuse or abuse Hipaa, the federal regulations protecting patients’ confidential health information? Let us count the ways:
■ Last month, in a continuing care retirement community in Ithaca, N.Y., Helen Wyvill, 72, noticed that a friend hadn’t shown up for their regular swim. She wasn’t in her apartment, either.
Had she gone to a hospital? Could friends visit or call? Was anyone taking care of the dog? Questions to the staff brought a familiar nonresponse: Nobody could provide any information because of Hipaa.
“The administration says they have to abide by the law, blah, blah,” Ms. Wyvill said. “They won’t even tell you if somebody has died.”
Ms. Span has reported on HIPAA problems before in her column and she tracks attempts to find solutions that balance the needs for privacy with communication that would be helpful.
Another common complaint about Hipaa enforcement, by the way, is the lack of access to patients’ own health records, which they have a right to see or copy, though providers can charge copying fees.
Within families, decisions about how much health information to share, and with whom, often become complicated, as a recent study in JAMA Internal Medicine found. When researchers working to design online patient portals convened two sets of focus groups — one for people over age 75, another for family caregivers — they heard the usual tension between older adults’ need for assistance and their desire for autonomy.
“Seniors say, ‘I don’t want to burden my kids with my medical issues,’ ” said Bradley Crotty, the director of patient portals at Beth Israel Deaconess Medical Center in Boston and the study’s lead author. “And the family is saying, ‘I’m already worried. Not knowing is the burden.’ ”
My thanks to my colleague Professor Laurel Terry for sharing this piece.
Marquette Law Professor Paul Secunda always has interesting perspectives, and that is again true with his recent article, The Behavioral Economic Case for Paternalistic Workplace Retirement Plans, to be published in an upcoming issue of the Indiana Law Journal. From his SSRN abstract:
Dependence on 401(k) retirement accounts continues to cause a massive retirement crisis in the United States by leaving most workers unprepared for retirement. The voluntary, inaccessible, employer-centered, expensive, and consumer-driven nature of these plans has combined to make retirement a type of corporate-inspired elder abuse in America.
Behavioral economics considers the utility of permitting individual choice in decision-making settings. Many, however, have been misled to believe that more choice is always better. Yet, according to one prominent commentator, this consumer-driven paradigm will lead to forty-eight percent of current workers between the ages of fifty and sixty-four being poor when they reach retirement. Behavioral economic workplace research instead strongly suggests that a better approach would be to use “choice architecture” to nudge workers into well-diversified, low-fee default retirement accounts set up by government-regulated private retirement funds.
Such a successful paternalistic workplace retirement model already exists. The Australian Superannuation Guarantee is a mandatory, universal, private, and comparatively inexpensive workplace retirement scheme. It also aligns the interests of retirement fund managers with fund participants. Most Australian employees do not exercise choice with regard to how their retirement contributions are invested. Employer contributions default into an individual’s MySuper retirement account operated by the country’s best money managers, who invest worker funds in a diversified manner, while charging very low investment fees.
As part of my Stewart Lecture remarks, I outline here a vision for the transformation of the American 401(k) retirement system into an efficient and sustainable superannuation model based on behavioral economic insights from the Australian workplace retirement system.
Professor Alexander Boni-Saenz at Chicago-Kent College of Law recently emailed me about his forthcoming article, Sexuality and Incapacity. The article is posted to his SSRN page and will be published in volume 76 of the Ohio State Law Journal. The abstract explains
Sexual incapacity doctrines are perhaps the most important form of sexual regulation, as they control access to sex by designating who is legally capable of consenting to sex. Most states have adopted sexual incapacity tests for adults that focus narrowly on assessing an individual’s cognitive abilities. These tests serve an important protective function for people with temporary cognitive impairments, such as those rendered incapable due to alcohol or drugs. However, this comes at the cost of barring many people with persistent cognitive impairments, such as Down Syndrome or Alzheimer’s Disease, from any sexual activity. This is despite the fact that they still have sexual desires and are able to engage in sexual decision-making with support from caregiving networks. The central claim of this Article is that sexual incapacity doctrine should grant legal capacity to adults with persistent cognitive impairments if they are embedded in an adequate decision-making support network. In other words, the right to sexual expression should not be withheld due to cognitive impairment alone. To justify this claim, the Article provides a theory of sexual incapacity doctrine that is grounded in the practice of supported decision-making and the normative foundations of sexual capability and relational autonomy. The Article then sets forth a novel test for sexual consent capacity: cognition-plus. This test focuses on gauging the capacity for volition, assessing the mental capacity of the individual to understand the nature and consequences of the sexual decision, and evaluating the adequacy of the decision-making support system using principles of fiduciary law. The Article concludes by applying the cognition-plus test to the case of older adults with dementia, a group of increasing importance with the aging of the population.
A draft of the paper is available as a pdf from the SSRN page of Professor Boni-Saenz. Thanks to Professor Boni-Saenz for letting me know about his article!
Friday, July 17, 2015
On July 7, 2015, in U.S. ex rel Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit, sitting en banc, created an easier path for whistleblowers to recovery under the False Claims Act for disclosure of fraudulent claims for Medicare reimbursement. From its introduction to the ruling in consolidated civil qui tam suits:
If a whistleblower informs the government that it has been bilked by a provider of goods and services, and that scheme is unmasked to the public, under what conditions can that same whistleblower recover part of what the guilty provider is forced to reimburse the government? We hold today that there are two, and only two, requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit. We also hold that the district court erred in its application of the rule that a whistleblower must be the first to file an action seeking reimbursement on behalf of the government based on the fraudulent scheme.
According to one lawyer interviewed here, the impact of the decision to reverse 25-year old case precedent, though important, may be limited to older cases, "since 2010 amendments to the False Claims Act have further clarified the 'original source' requirements.
Additional history -- and predicting clarifications -- about the public disclosure provisions of the False Claims Act comes from Albany Law Emeritus Professor Beverly Cohen, in an article from Mercer Law Review, titled "Trouble at the Source: The Debates Over the Public Disclosure Provisions of the False Claims Act's Original Source Rule." For more, see Professor Cohen's interesting article (in my own law school's law review, I was happy to discover!), "Kaboom! The Explosion of Qui Tam False Claims Under the Health Reform Law."
ElderLawGuy Jeff Marshall Esq. has a staffer who works with therapy dogs in nursing homes and Jeff posted Josephine Reviello's interesting essay on her experiences. She begins with a surprising history of the "case law" behind the nickname for dogs as "Man's Best Friend:"
The popularization of the phrase is actually said to have come from an attorney, George Graham Vest. In 1870, Vest was in the courtroom representing a farmer who was suing for damages after his dog “Old Drum” was shot by a neighbor. Toward the closing of the trial, Mr. Vest said, “A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.”
And later, the phrase shortened to “man’s best friend”. Vest won the case and also won its appeal to the Missouri Supreme Court. A statue of the dog stands in front of the Warrensburg, Missouri courthouse.
The author's dog is an Old English Sheepdog, Hannah Bear. I can just imagine how popular she would be!
"Nothing makes me feel better inside than spending a couple of hours at a nursing home where people who want to pet our dogs. It totally lightens up the entire atmosphere -- for everyone."
Of course, occasionally Pam's critters have been known to go on vacation, especially at this time of the year when they sneak off to the beach for a little R & R. Be careful, Thelma Lou; too much time in the sun can cause wrinkles!
Prudential has released its findings from its 8th biennial survey of women on their financial experiences and behaviors. Financial Experience & Behaviors Among Women covers 2014-2015. The foreword offers this insight
Women still have a number of identifiable financial goals, of course. High on their list: having enough money to maintain their lifestyle throughout retirement, to cover health care expenses and to reduce personal debt. They also don’t want to become a financial burden to loved ones or outlive their savings. And they define financial success as achieving a comfortable, financially secure retirement. The difference is simply that they no longer attach as high a degree of importance to these goals as they did a few years ago.
The report discusses the "confidence" of women to achieve their goals, their use of financial advisors and their understanding of financial products. Perhaps somewhat unsurprising, the foreword also mentions that "[o]ne of the biggest perceived impediments to reaching financial goals is not having enough disposable income to dedicate toward them, cited by about half of women. But they also admit to a lack of familiarity with financial products and the sense that they simply don’t know what to consider when evaluating their options."
Page 11 of the report discusses differences between the generations. For example, the report notes that 65% of baby boomers reported confidence that they will be able to maintain their style of living through retirement.
Thursday, July 16, 2015
George Washington Law Professor Naomi Cahn observes that it is hard to find humor in the drama that appears to underlay the publication of Harper Lee's second novel. Professor Cahn passes along The Onion's ability to do just that with a satirical prediction of Harper Lee's third novel: "Shocking the literary world once again, acclaimed author Harper Lee announced through her publisher Tuesday the surprise release of her third novel, My Excellent Caretaker Deserves My Entire Fortune...."
A rueful smile here...
Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg.
- "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
- How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
- Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
- LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
- Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
- Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
- A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)
There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).
I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!
July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
The National Consumer Law Center has announced a free upcoming webinar on July 23, 2015 on The Benefits and Challenges of Older Adults Aging in Place in Manufactured Housing Communities. Information about the webinar was provided in the announcement:
Thousands of older adults with modest financial resources live in manufactured housing communities. These naturally occurring retirement communities provide a safe physical and socially active environment that enable older adults to successfully age in place. Elders, however, risk displacement when the community is closed or rents are increased beyond an affordable level. This webinar will discuss the benefits and challenges that older adults face as residents of manufactured housing communities as well as policies and practices that can support their community.
Click here to register for the webinar.
Wednesday, July 15, 2015
Community Legal Services of Philadelphia (CLS) recently issued an important report, examining statistics on complaints and enforcement actions under the purview of Pennsylvania's Department of Health, the chief regulatory body for nursing homes. To put it bluntly, the regulators are getting a failing grade here, with a new Governor (and an uncooperative Legislature on funding issues) facing the need for action. From the executive summary:
The Pennsylvania Department of Health (DOH) has been failing to protect elderly and disabled nursing home residents. Community Legal Services of Philadelphia (CLS) regularly advocates on behalf of nursing home residents, representing them in matters relating to the preservation and protection of their rights. Over the past several years, under the previous governor’s administration, CLS has witnessed DOH significantly decrease its enforcement of nursing home regulations and patient protections. In an analysis of DOH nursing home investigations and inspections that occurred in Philadelphia from 2012-2014, CLS has found that DOH’s conduct has put elderly and disabled Pennsylvanians at risk of physical harm or death.
During this time period, DOH dismissed an extraordinary number of complaints against nursing homes, failed to properly follow up when a violation was found, mischaracterized harm against patients, and dramatically decreased its penalties against nursing homes. Unfortunately, DOH’s failures have not only placed residents at risk, but they have also resulted in inaccurate publicly available information that forces potential residents and their families to make major life decisions without all of the important facts. Pennsylvania must fix this crisis and ensure the safety of elderly and disabled nursing home residents.
The CLS authors make recommendations for change, including a commitment to "better transparency to the public regarding investigations and characterization of harm."
Tuesday, July 14, 2015
In conjunction with the 2015 White House Conference on Aging, on July 13, 2015 CMS announced proposed changes to nursing home regulations. The proposed changes will be published in the Federal Register on July 16, 2015, but an advance look at the proposal is available here.
Everyone has instances where inability to recall a name or face occurs and sometimes frightens us. But, if you have a loved one with Alzheimer's, you may have experienced what I would call "advanced level" frustrations about memory. Why does he (or she) remember one thing, but not another? (For a long time, my father would spontaneously give answers to questions on Jeopardy, on topics he could no longer discuss 0r understand in conversation. Our family puzzled about whether there was a way to help him access positive memories, without putting pressure on him, in the same way Alex Trebek seemed to accomplish!) Are memories coded by importance? These kinds of questions guide an interesting discussion on a recent Radiolab episode on Memory and Forgetting, now available on podcast.
The experts interviewed, including the always interesting Dr. Elizabeth Loftus at University of California Irvine, and the studies described on this episode also document many reasons to be cautious about the significance of eye witness testimony in court cases. Lawyers intimately rely on, or are confounded by, the ability to remember.
Monday, July 13, 2015
The Institute of Medicine has a new book forthcoming from the National Academies Press. Cognitive Aging: Progress in Understanding and Opportunities for Action (2015) is available now in prepublication for purchase (or download as a pdf for free). The final version can also be ordered now. The website offers this description of the book
For most Americans, staying "mentally sharp" as they age is a very high priority. Declines in memory and decision-making abilities may trigger fears of Alzheimer's disease or other neurodegenerative diseases. However, cognitive aging is a natural process that can have both positive and negative effects on cognitive function in older adults - effects that vary widely among individuals. At this point in time, when the older population is rapidly growing in the United States and across the globe, it is important to examine what is known about cognitive aging and to identify and promote actions that individuals, organizations, communities, and society can take to help older adults maintain and improve their cognitive health.
Cognitive Aging assesses the public health dimensions of cognitive aging with an emphasis on definitions and terminology, epidemiology and surveillance, prevention and intervention, education of health professionals, and public awareness and education. This report makes specific recommendations for individuals to reduce the risks of cognitive decline with aging. Aging is inevitable, but there are actions that can be taken by individuals, families, communities, and society that may help to prevent or ameliorate the impact of aging on the brain, understand more about its impact, and help older adults live more fully and independent lives. Cognitive aging is not just an individual or a family or a health care system challenge. It is an issue that affects the fabric of society and requires actions by many and varied stakeholders. Cognitive Aging offers clear steps that individuals, families, communities, health care providers and systems, financial organizations, community groups, public health agencies, and others can take to promote cognitive health and to help older adults live fuller and more independent lives. Ultimately, this report calls for a societal commitment to cognitive aging as a public health issue that requires prompt action across many sectors.
McKnight's News has an interesting essay reporting on the potential significance of a research project underway in Kansas:
In 2002, Kansas created a pay-for-performance Medicaid program designed to improve residents' lives. Starting this month, the Center for Applied Research at LeadingAge and Kansas State University will delve into statistical evaluation of whether the program has helped resident health, resident quality of life and employee job satisfaction. The $149,776 grant was awarded by the Retirement Research Foundation.
The 18-month CFAR project will be one of a few large-scale analyses of the potential benefits of adopting culture change. Smaller-scale studies have shown, modestly, that resident quality of life improves with culture change, and larger studies have suggested some positive outcomes related to a decrease in physical restraints and feeding tubes, says researcher Linda Hermer, Ph.D.
“I am hoping one of the things we will be able to tell, with finer precision, is to be able to understand whether there are truly benefits from culture change to a resident's health and quality of life,” she told McKnight's.